I finally got the news. I checked the mail one more time. Denied! My H-1B visa and status adjustment were rejected. My whole career was just wiped out.
But wait – that’s not the worst part. The worst part is that you don’t have any idea what happens next. Do you need to leave? Can you stay? What about your family?
Everything you’ve worked for is now hanging by a thread in front of you.
If you are going through this, we know the anxiety. The fear. The uncertainty. But let’s talk about this because it’s not the end. You don’t have to panic. You don’t have to face this alone. You have options, even if it feels like the door just slammed shut.
This blog is here to walk you through what happens after an H-1B visa or status adjustment denial. We’re diving deep into what you can do next, from filing motions to exploring other visa options. It’s time to figure out how to regain control and protect your future in the U.S. So, let’s get into it.
Navigate Your Immigration Journey with Confidence
What is an H-1B Visa Denial?
So, what exactly does it mean when you face a denied status adjustment H-1B visa? Simply put, it’s when the U.S. Citizenship and Immigration Services (USCIS) rejects your application for an H-1B visa or status adjustment. This can happen for several reasons: an issue with your paperwork, missing documents, or maybe the USCIS doesn’t feel you meet all the requirements.
A denied status adjustment H-1B visa doesn’t just stop you from working legally in the U.S. It can also affect your current status, your job, and future plans. If you’re out of status, you could be forced to leave the U.S. or face deportation. It’s a huge setback. But don’t panic just yet—there are steps you can take and options to consider.
Feeling overwhelmed? Contact the Law Offices of Sweta Khandelwal today to get expert guidance on how to move forward if your H-1B visa is denied.
Impact of Denied Status Adjustment of an H-1B Visa
When your H-1B visa status adjustment is denied, the impact can be immediate and significant. Here’s what you might face:
- Loss of Lawful Status and Potential Deportation:
The moment your status adjustment is denied, you could lose your lawful status in the U.S. This means you’re no longer authorized to stay, and USCIS might initiate deportation proceedings. It’s crucial to act fast to avoid becoming out of status. USCIS provides a 60-day grace period for H-1B workers whose employment has been terminated, allowing them to find new employment or change their status. - Effect on Adjustment of Status Under INA Section 245:
If you were trying to adjust your status under INA Section 245, a denied status adjustment H-1B visa complicates the process. Section 245 requires you to be in lawful status to apply for permanent residency. Without it, your chances of moving forward with your application become much harder. - Complications with Maintaining Work Eligibility and Legal Status:
Once your H-1B visa is denied, especially if you’re attempting a transfer, you may no longer be eligible to work for your current employer. If you’re already out of work, you could face a serious gap in your legal status. It’s essential to avoid unauthorized employment to prevent further complications.
Also Read: Changing Employer with an O-1 Visa: Procedure and Challenges
Options After H-1B Visa and Status Adjustment Denial
Getting that dreaded notice that your denied status adjustment H-1B visa can feel like your whole future just crumbled. There are several options to explore that could help you stay on track. Let’s break them down:
1. Filing a Motion to Reopen or Reconsider
One of your first options after a denied status adjustment H-1B visa is to file a Motion to Reopen (I-290B) or a Motion to Reconsider. This gives you a chance to get USCIS to take another look at your case. If there’s new evidence that wasn’t included in your initial petition, or if the initial decision was made based on incorrect facts or legal errors, a motion could work in your favor.
- Motion to Reopen: This is for when you have new evidence or facts that weren’t available when you first filed.
- Motion to Reconsider: If USCIS made an error in applying the law or policy, this motion asks them to reconsider their decision.
To file either of these motions, you’ll need to submit Form I-290B within 30 calendar days of receiving the denial notice. Be aware that there’s a filing fee, but in some cases, you might be eligible for a fee waiver, which would be mentioned in your denial notice.
2. Appealing to the Administrative Appeals Office (AAO)
If your motion to reopen or reconsider doesn’t give you the outcome you need, the next step is to appeal to the Administrative Appeals Office (AAO). This is where your case gets reviewed more thoroughly by a higher authority. If the denial was based on something that might not have been fully understood or if new evidence could make a difference, appealing to the AAO is your next best option. A field office’s rejection of an immigration benefit request may not be appealed to the AAO. An appellant[49] may not appeal a field office’s unfavorable decision on a motion to reopen or reconsider unless the field office’s original decision was appealable to the AAO.
- What’s the catch? While your case is under review, you won’t be able to work. So, it’s essential to plan ahead and avoid gaps in your employment authorization.
3. Exploring Other Visa Categories or Reapplying
If motions or appeals aren’t successful, don’t feel like all hope is lost. There are other visa categories you might qualify for, and reapplying for an H-1B visa could be a valid option. Here’s a rundown of some alternative visa options that might be a good fit for you:
- L-1 Visa: If you’re an employee of a company with an international presence, you might be eligible for the L-1 visa, which allows intra-company transfers. If you’ve been with a company that has a branch, subsidiary, or affiliate abroad, this might be a route to explore.
- O-1 Visa: If you have extraordinary abilities in your field—whether it’s arts, science, education, business, or athletics—the O-1 visa could be a great option. It’s a popular choice for professionals in specialized fields, such as tech or entertainment.
- TN Visa: If you’re from Canada or Mexico, the TN visa might be another avenue. Under NAFTA, certain professionals can work in the U.S. on a TN visa without the H-1B cap restrictions.
In addition to these visa options, it might be worth considering reapplying for the H-1B visa itself. If the reason for the initial denial was something fixable—like missing documentation or an issue with your application—you might stand a better chance with a fresh application. However, be mindful of potential limitations, such as your priority date or the H-1B cap, which could affect your reapplication.
What if You’re Outside the U.S., and Your H-1B Transfer is Denied?
If you’re outside the U.S. and your H-1B transfer gets denied, there are still ways to move forward.
- File a New H-1B Petition: If the reason for the denial is something that can be fixed, you may want to file a new petition with a different employer or even with your original sponsor, if possible.
- Employment Outside the U.S.: Depending on your field, it might make sense to explore other job opportunities in a country where you have work authorization. It might not be the ideal outcome, but it’s worth considering if other visa routes prove to be unfeasible.
4. Family Impact—What About Your H-4 Dependent Family Members?
It’s important to understand how a denied status adjustment H-1B visa can impact your family members, especially those on H-4 visas (spouses and children). The status of H-4 dependents is directly tied to the H-1B holder’s status. If the H-1B holder falls out of status due to a denial and does not take corrective action within the allowed grace period, H-4 dependents may also lose their status.
This means they’ll have to stop working (if they’re on H-4 EAD) and could face deportation or be required to leave the U.S. alongside you. In such cases, it’s essential to have a backup plan, like applying for other visas or ensuring you meet the necessary requirements to prevent any disruption in your family’s status.
Filing motions, appealing decisions, and exploring alternative visas can all help you. Contact Sweta Khandelwal for expert legal guidance on your next steps. Together, we’ll create a strategy to keep your immigration dreams on track.
Can You Work with Your Current Employer?
After your denied status adjustment H-1B visa, you might be wondering if you can still work for your current employer. The answer depends on your situation, but here’s what you need to know:
1. Continuing Employment with Original Sponsor
If your H-1B transfer was denied, but you’re still employed with your original sponsor, you can continue working with them. The key here is that as long as your initial H-1B petition is still valid and hasn’t been revoked, you’re legally allowed to work with that employer.
There’s no need to panic if your transfer is denied—just keep doing your job with the company that initially sponsored you. However, if your initial H-1B was only approved for a specific period and you’re near the expiration date, you’ll want to start planning ahead for an extension or a new application well before it expires. Don’t wait until the last minute!
2. Unauthorized Work with a New Employer
If you’ve already started working for a new employer after your H-1B transfer was approved and then denied, you must stop working immediately. Working for a new employer without proper authorization puts you in a position of unauthorized employment, which can lead to serious consequences, including the accumulation of unlawful presence. This could impact your future visa applications, green card status, or even re-entry into the U.S.
Also Read: How to Apply for an O-1 Visa Extension
Can You Return to a Previous Employer?
If your denied status has left you in a difficult position, you might wonder whether you can return to your previous employer. The answer is yes. If your previous H-1B petition is still valid (meaning it hasn’t been withdrawn or expired), you can potentially return it to your prior employer.
However, you need to ensure that the employer is willing to bring you back and that the H-1B petition is still active.
Navigating this situation can be tricky, and it’s crucial to seek legal advice before taking any action. You can Contact the Law Offices of Sweta Khandelwal to ensure that all paperwork is correct and guide you through the necessary steps to rejoin your old employer.
Lawful Visa Status Considerations
Lawful visa status is critical. This will determine whether you remain in compliance with U.S. immigration laws or if you face additional complications. Here’s what you need to know: Your period of authorized stay is tied to the validity of your I-94. This document dictates how long you’re allowed to stay in the U.S. If you’re in or out of status and the I-94 is still valid, you can continue your stay.
- Consequences of Denial Occurs After I-94 Expiry
If your denied status adjustment H-1B visa comes after the expiration of your I-94, you’ll fall out of status. Being out of status is a serious issue that could lead to bars on re-entry or difficulties with future visa applications. You might also face the accumulation of unlawful presence, which can create significant challenges for your immigration future.
It’s crucial to monitor the status of your I-94 and ensure you remain within the authorized stay period.
Also Read: O1B Visa Checklist – Application Process and Requirements
How to Avoid H-1B Visa Denial?
No one wants to deal with the stress and uncertainty of a denied status adjustment H-1B visa, but the good news is that you can take steps to reduce the risk. Here are some important things to keep in mind when applying for or transferring your H-1B visa:
1. Complete and Accurate Documentation: Submitting a complete and accurate petition is crucial. Ensure all the forms are filled out correctly, and double-check your supporting documents. Missing or inaccurate information is a common cause of denials.
2. Strong Employer-Sponsor Relationship: Your employer’s support is vital. They should provide the correct documentation, such as your job description, pay rate, and proof of business operations. Having a strong relationship and clear communication with your employer helps ensure all the required paperwork is submitted in a timely and accurate manner.
3. Sufficient Job Classification: Ensure your job qualifies under the H-1B category. USCIS reviews the job description to ensure it requires a bachelor’s degree or higher in a specialized field. If the position doesn’t meet these criteria, it’s more likely to be denied.
4. Meet the Wage Requirements: USCIS requires employers to pay the prevailing wage for the specific occupation and location. If your employer doesn’t meet the wage requirements, it can lead to a denial. Make sure your employer is aware of this and follows the proper wage guidelines.
5. Avoid Filing in the Wrong Category: Sometimes, applicants mistakenly file under the wrong visa category. If your job doesn’t qualify for an H-1B, applying for this visa could lead to a denial.
While no one can guarantee approval, taking these steps significantly improves your chances of getting approved for your denied status adjustment H-1B visa.
It’s always better to prevent an issue than deal with it later. If you’ve already been denied and want to know your options, Contact The Law Offices of Sweta Khandelwal.
Navigate Your Immigration Journey with Confidence
Conclusion
Facing a denied status adjustment H-1B visa can feel like a heavy blow, especially when you’re left wondering what your next steps are. The process can be overwhelming, and the uncertainty of your status and future plans might leave you in a state of anxiety. With careful planning, professional advice, and a clear understanding of your options, you can still find a way forward.
Contact the Law Offices of Sweta Khandelwal today for expert guidance on your next steps. Our team can help you navigate your options, whether it’s filing a motion to reopen or exploring alternative visa categories. Don’t let this setback derail your future—Sweta Khandelwal and our legal team are here to assist you every step of the way. If you’re unsure of your options, don’t hesitate to Contact The Law Offices of Sweta Khandelwal for a consultation.
Disclaimer
Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.
